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People v. Davis

February 08, 2001


Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois; No. 98--CF--220; Honorable Clark C. Barnes, Judge Presiding

The opinion of the court was delivered by: Justice Holdridge.

As amended March 30, 2001

Defendant Joshua T. Davis was charged by indictment with one count each of armed violence, aggravated battery (great bodily harm), and battery, and two counts each of aggravated battery with a firearm. The charges of aggravated battery with a firearm were dismissed prior to trial. Following a stipulated bench trial, the defendant was convicted of all remaining charges. He was sentenced to a six-year term of imprisonment on the armed violence conviction, and a concurrent jail sentence of 364 days on the simple battery conviction. The defendant was also ordered to pay restitution to his two victims in the amount of approximately $28,000. The conviction of aggravated battery (great bodily harm) was vacated as a lesser-included offense of the armed violence conviction.

The single issue raised on appeal is whether the defendant committed the offense of armed violence when he shot out one of his victim's eyes with a Crossman .177 caliber air-powered pellet/bb pistol. For the following reasons, we affirm the conviction.

The undisputed evidence established that on July 2, 1998, several boys were at the home of the defendant visiting his brother. The boys were on the roof of the house setting off fireworks when the defendant peered out of a window and announced that he would shoot the boys if they did not come down from the roof. Shortly thereafter, the defendant re-appeared holding the Crossman pistol. The defendant took aim at one of the boys (Matthew Mulder) and told him to leave the property or be shot. Mulder felt a shot whizz past his head. He turned to run to his bicycle when he felt a sting in his back. Mulder then heard his friend Cody Junior scream that he had been shot. Junior was hit with a bb/pellet in the left eye.

Mulder was subsequently treated for a minor wound and released from the local emergency room. Junior eventually had to have his left eye removed.

Police Chief Carl Koehler went to the Davis house and was given the bb/pellet pistol by the defendant's mother. Defendant was interviewed, waived his Miranda rights and admitted that he had fired the gun at Mulder and Junior because they had irritated him.

After the stipulated evidence was presented the trial court found the defendant guilty of armed violence, aggravated battery and battery. The trial court sentenced the defendant to the statutory minimum sentence for armed violence - six years.

On appeal, the defendant maintains that the Crossman bb/pellet air pistol is not a "dangerous weapon" as that term is defined in the armed violence statute (720 ILCS 5/33A-1 (West 1998)(the Code)), and therefore he cannot be guilty of that particular offense. Both parties acknowledge that whether a bb/pellet air pistol is a dangerous weapon under the Illinois armed violence statute is a question of first impression.

The issue herein involves the statutory construction of the armed violence statute. Because the construction of a statute is a question of law, the standard of review is de novo. People v. Robinson, 172 Ill.2d 452 (1996). The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Whitney, 188 Ill.2d 91 (1999). When statutory language is clear and not ambiguous, its plain meaning will be given effect. Whitney, 188 Ill.2d at 99. When the meaning of the enactment is unclear from the statutory language itself, the court may look beyond the language employed and consider the purpose behind the law and the evils the law was designed to remedy. Kunkel v. Walton, 179 Ill.2d 519 (1997).

A person is guilty of the offense of armed violence if he commits a felony while armed with a dangerous weapon. The definition of "armed with a dangerous weapon" at issue in this proceeding is contained in Section 33A of the Code, with the relevant part reading:

"(a) 'Armed with a dangerous weapon'. A person is considered armed with a dangerous weapon for purposes of this Article when he or she carries on or about his or her person or is otherwise armed wit a category I, or category II weapon. (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character. (c) A category II weapon is a bludgeon, blackjack, slungshot, sand-bag sandclub, metal knuckles, billy or other dangerous weapon of like character. (Emphasis added.)(720 ILCS 5/33A-1 (West 1994)).

A weapon specifically listed in the definition is considered a per se dangerous weapon. Mere possession of such a weapon during commission of a felony is sufficient to sustain a conviction for armed violence. People v. Alejos, 97 Ill. 2d 502 (1983). However, a weapon not listed can become a dangerous weapon when it is used in a manner dangerous to the well-being of the individual threatened. People v. Ptak, 193 Ill. App. 3d 782 (1990)(defendant stabbing victim with broken glass bottle guilty of armed violence).

In the instant matter, the defendant argues that the bb/pellet air pistol that he fired at Mulder and Junior did not fall within the category I definition of a dangerous weapon. We disagree and find that the weapon at issue is a category I weapon. The statute lists several category I weapons, including pistol, spring gun and firearm, and then concludes with the general statement "any other deadly or dangerous weapon or instrument of like character." The question thus presented to us is whether an air pistol capable of firing steel or lead ...

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